Asset Beneficiaries are important

As we all know (some more traumatically than others), the divorce bug has attacked nearly every family at some point. And when it hits, the parties are often so unsettled that making sure all their bases are covered can be a real challenge. One thing that's often overlooked is a party's will. If it's a New Hampshire will, the parties are covered by a statute that automatically revokes any bequest to the former spouse. If the parties have put all their assets into a joint revocable trust, however - maybe to avoid probate or to provide for young children - there's no automatic revocation, and the parties really need to assign those assets to new separate trusts to avoid the surviving [former] spouse from continuing to benefit.

Even if they're clear-headed enough to think of all that, though, they're not finished. They also need to review their bank and investment accounts, insurance policies, annuities and the like that are jointly-owned or have designated beneficiaries. The proceeds of those assets are unaffected by the divorce decree, and unless the ownership and/or beneficiary arrangements are carefully changed directly with the bank, insurance company or other institution, the former spouse is going to get a windfall upon the first party's death - maybe at the expense of the parties' children or the deceased party's eventual new spouse.

While we're talking beneficiaries, permit me to mention one other potential snag that has nothing to do with divorces. Many people who've hand-crafted a trust to protect their young children or grandchildren still have them named as the beneficiaries of the kinds of assets mentioned in the last paragraph. Or maybe it's even the grown kids who are named as the beneficiaries, but then one of them predeceases the account or policyholder (that's you), and your young grandchildren step into their parents' shoes. In either of those scenarios, if the asset ends up passing to young children or grandchildren, they're going to receive the big payoff at age 18 - the legal age of majority (for all purposes but drinking!) - no matter how carefully your trust provides for its assets to be held until the kids are 21 or 25 or whatever age you think is more appropriate. That unfortunate result can be remedied easily, just by making the trust itself the beneficiary, so the assets collect in there and then are parcelled out to your off-shoots as your carefully-constructed trust provides.

Finally, let me answer a good question that many people pose while signing their new trusts: "If I'm creating a trust to hold my assets, why do I still need a will?" It's because not everyone follows through to get all their assets re-titled into the name of the trust - or made payable to the trust - so there still needs to be a vehicle for making sure those stray assets end up where they're supposed to be. And that can make a significant difference in the outcome, because if there's no will at all, and if a large asset isn't in trust name or payable to the trust - say, because it's payable to the decedent's "estate" - that asset may end up going to a relative who's entirely different than the trust beneficiaries. We're actually wrestling with that very scenario right now, as a recent NH resident/decedent set up a trust in another state with numerous charitable beneficiaries carefully provided for, but then forgot to back up the trust with a will when she arrived here. Now the considerable non-trust assets are heading off to the family members who inherit when there's no will - and who may be perfectly nice folks, of course, but who weren't the intended recipients. A simple will passing everything to the trust would have avoided that nightmarish outcome.

Modern Families

Let's start with the situation that sends a shiver through every parent - what to do if one of the kids is missing (heaven forbid). Well, if you've really determined that's the case - the child's not just at a friend's house without your knowledge, or didn't get off the bus because he/she got sent to detention and missed the usual ride - you should certainly start with the local police department. Then, depending on what you think may have happened, you can also contact the State Police Missing Persons Section of the Major Crimes Unit at 603-223-3856 or missingpersons@dos.nh.gov.

And if you take the belt and suspenders approach to things, you can also check out the FBI's Child ID app, where you can store photos and all sorts of information about your children that would be extremely helpful to the authorities in the event of trouble. Here's one of the success stories the app references: "One of the app’s questions prompted the boy’s father to remember an unusual characteristic of his boy’s front teeth. The captured data, along with the child’s digital image, was sent to FBI offices. Armed with detailed info, the FBI was able to issue an extremely detailed press release about the boy. And hours later, the child was abandoned by his captors, recognized in a busy office park by a bystander and reunited with his parents."

Let's also talk about when the kids go visit grandma and grandpa because you're off to ride motor bikes in Bermuda for a week! First of all, get your own planning in order, because those things slide all over the road when you get caught in a shower. Then, you should probably consider some arrangements for the grandfolks to be able to get medical care for the kids if one of them has a health hiccup while you're gone. And if it's during the school year, you might combine that with authorization for the folks to act in loco parentis with the administration about all sorts of educational issues - all the way from picking the kids up for those doctor visits, to discussing attendance and disciplinary issues, even giving approval for a school trip or Friday night rollerskating. Needless to say, this all becomes more and more important the longer you plan to be away from the little guys. If it's just a long weekend, you may not want to bother with anything at all, but if you're heading off to spend a year with Habitat for Humanity, it would be critical - but so would your own planning in that event.

In order to help with the arrangements, we'll be happy to send you a self-explanatory form you might consider. And one way to test whether it will achieve the desired results would be to provide it to the kids' pediatrician and principal for pre-approval. If they balk, or if they want other specific language included, it would help to know that and try to do something about it before you leave town. Bon voyage!

An Important New Law

This is the time of year when new laws take effect, and I want to tell you about one of them that may pertain to lots of families. I'll preface this by saying that it's purely hypothetical information to advance your legal knowledge - and that I'm definitely not disparaging the reputation of any real person who may read this message. Disclaimers are an important legal tool.

To boil it down, the new law makes it a criminal offense to breach a fiduciary duty to, or to otherwise exploit, an elderly, disabled or impaired adult. The most likely way this might occur is for a guardian or the holder of a power of attorney to use the vulnerable person's resources for the guardian's or holder's personal advantage, So, the agent (that's what we'll call the fiduciary) might make a "loan" or "gift" to himself from the person's funds, or spend the person's funds on things that only benefit the agent - like a new bicycle or set of golf clubs that few people in wheelchairs could probably use. Sure, some powers of attorney allow the agent to make gifts, even to the agent (we often include those provisions), but an agent who actually does so is treading on very thin ice and had better proceed with extreme caution.

First of all, full disclosure - in writing - is an absolute must, not only to the person whose funds are involved (if he or she is competent to understand), but also to any other family members or eventual beneficiaries whose interests might be adversely affected. One common example is when an elderly person has established a history of making birthday or holiday gifts to family members, and the agent is perpetuating that practice. Not only should the gifts be comparable to those the person made herself, but there should be no gifts at all made unless there are still plenty of resources left to provide for the disabled person's care and needs.

In another message I wrote about entering into a care agreement with an elder, in order to help keep the person at home and perhaps to benefit a family member who may be providing the services. I emphasized the need for a clear, written agreement there, but it's also critical that the compensation paid be reasonable for the services provided. In other words, the agent may be running afoul of the new statute if he uses the elder's funds to pay his spouse or children way more than a third party would command to provide the same services.

And I can tell you from long and unpleasant experience that there's nothing that drives a nasty wedge between, say, the elder's agent and his or her siblings than to have the siblings decide that their inheritance is being depleted by the agent without their knowledge and for suspect or downright improper purposes. That may be a mouthful, but it's one you don't want to try to swallow. Plus, it's not only a scenario that might require the agent to disgorge all his ill-gotten gain - together with the attendant attorneys' fees of everyone else involved - but since January 1it might result in law enforcement consequences, as well.

One last point that might soften some of the intimidation I may have created: The new statute really just codifies the state of the law as it's always existed for fiduciaries - albeit adding some sharp teeth. It's not intended to punish agents doing the best they can for their elders, or to hold them personally responsible if decisions made carefully and in good faith simply don't pan out through no fault of the agent. Here's my rule of thumb when you're an agent and on the fence in one of these situations: Is the decision you're about to make one that you'd want described on the front page of the local paper? If not, then you probably know what not to do.

A Caring Alternative

This message is about what more and more of us are trying to do to make life as pleasant as possible for our venerable but vulnerable elders. I'm sure nearly all of you have a family story about a beloved grandparent or crotchety old uncle who lived with you (or someone in your family) when you were a kid. That was the norm a generation or more ago, when the recourse to nursing homes was much less prevalent than it's become.

The paradigm seemed to shift in the '60s or '70s when both parents in a family had to leave home for work and there was no one left in the house all day to make sure the lovable oldster didn't fall or leave the stove on. The trouble is, even if a nursing home seems the only alternative, the cost of such care has exploded much like college tuition, and the tab for a year in an institutional residence can now top $100,000. Sure, there's Medicaid to pay the tuition if skilled nursing care is called for, but that usually requires the senior to deplete nearly all his or her assets first, or go through elaborate machinations to put those hard-earned assets out of their reach. Neither of those scenarios has ever looked appealing to me, for reasons that are pretty obvious.

So, what's the solution, if there is one? Clearly, if the elderly family member needs services we just can't provide at home - real medical procedures or care we're just not physically capable of handling - then the choices may be limited. But if we're just talking about making sure medications are being taken when they're prescribed, making sure diets are healthy and meals are being eaten, and ensuring that emergency services are called in should the need arise, then maybe home care is something we can handle. Still, if there's no one at home most of the day, maybe even those functions are more than we can safely provide for.

How about this, though. What if one of the family members who's been going to a job somewhere everyday decides to take on the job of caregiver him- or herself? And I don't mean just giving up that additional income, but getting paid to provide the home care. Nearly any way you cut it, that's bound to be less expensive than paying for institutional care, and it keeps the cost of care in the family instead of having it fly out the window. Not to mention the all-important goodwill factor.

So what's the catch? There's no real catch as long as you go about this process on a business-like, arms-length basis. That is, instead of pouring over the detailed care contract with a nursing facility, you yourself sign one with your senior family member. The contract comprehensively spells out all the services you're going to provide at home and sets a compensation rate that's generously comparable to what you'd pay a third party to come in for the same purposes. Then you both actually sign the agreement and keep it for later documentation, if that becomes necessary. When might that be, you say? Well, if it turns out that Mom or Grandpa can't stay with you right up to the end and really needs a nursing home at some point, you'll be able to establish that the funds received for your services were a contractual obligation and not just a monthly gratuity. If the former, then those payments won't be disqualifying gifts for Medicaid application purposes, but if the latter, then no matter how much value you've provided at home, those monthly stipends will be treated as voluntary gifts - and delay, perhaps for a significant period, the ability to qualify your elder statesperson for Medicaid benefits.

Yes, this is one area of the law where oral contracts, though often valid and enforceable under other circumstances, just won't cut the mustard. They have to be in writing and signed up - before the services are actually provided.

Reversal of Fortune

I've written before about the wonders of reverse mortgages, so take a look at our website for all the pros first - before I toss a thimble of cold water on this hot concept for cash-strapped seniors.

As Fred Thompson and Henry Winkler have told us, these mortgages are for the 62+ folks who have comfy homes that they don't want to give up, but who need additional income to keep up with their real estate taxes or other living expenses. The idea is that you get approved for a mortgage amount based on the value of your home and certain actuarial factors - then the lender pays you a monthly stipend for the rest of your life or until you decide you really do want/need to sell. At that point, whatever you've been paid, plus the interest the lender is charging (they're not doing this for free, no matter how wonderful Fred or Henry makes it sound), get repaid, like what would happen with a regular mortgage.

That all sounds fine, but what if you die while you still own the house and with a large reverse mortgage balance outstanding - and your spouse still needs a place to live? That can be a problem if only one of a couple owns the property and took out the mortgage just in the decedent's name. The obvious solution to that snag would be to make sure the mortgage is in both names, so the survivor can also stay at home, if so inclined.

Or more troubling, what if both parents are now gone, but there's a child who wants to keep the old homestead - maybe the child has been living there providing care for Mom or Pop? Can that child assume the mortgage and start making monthly payments? Unfortunately, somewhere in the fine print it clearly says no. So, unless the child can qualify for a new mortgage on his/her own - and pretty quickly - the child either has to sell, or Fred and Henry are going to drop the hammer and foreclose. That could not only dislocate a loyal but vulnerable child, but also result in a forced sale at a depressed price that wipes out whatever equity the property may have.

The key to avoiding these and other unanticipated results is to get the answers about likely scenarios before innocently signing up for a reverse mortgage and having the bottom fall out later on when there aren't any decent options. For example, before proceeding, try to determine whether anyone in the family is likely to want to keep the house once all the seniors are gone. If not, then the house will be sold anyhow and a reverse mortgage may make perfect sense after all. If so, however, it's important to discuss the situation with the lender before proceeding. Maybe instead of a reverse mortgage, it might make sense to consider a plain old equity line of credit that the lender would allow to be assumed by the interested offspring. Of course, if the lender commits to that, make sure they put it in writing, as your helpful loan officer will undoubtedly be working somewhere else when the time comes. Posted 02/09/2015 Misc.

Seasonal Generosity

There's just so much going on during the weeks leading up to the holidays that it's hard to see your way through. One important task, though, is to try to help out those organizations that depend on us for their very survival - and I'm not talking about the stores at the mall on Black Friday. I mean the local food banks, daycare centers, hospice and healthcare facilities, as well as our favorite cultural places that make living here so rewarding. All you have to do is visit nearly anyplace else, and you come home appreciating what a bonanza of riches we have here - and too often take for granted.

So amid all the holiday cards and parties, and the double-checking of your naughty/nice lists, here are a couple of ideas you might post on the fridge where you'll see them each time you top off your eggnog.

Even though your bank balance may also be stressed out these days, most organizations will let you use plastic to make your contributions. That way, you can get your deduction this year and take until MLK Day (OK Easter) to pay off the charge. You'll probably also earn points you can use for your next trip to Bermuda (OK Foxwoods).

If your investments have done well this year (if they haven't, you may want to put "interview new advisor" on your New Year resolutions list), you can toss a few shares of one of your big winners to a deserving organization, and you'll get credit (and a deduction) for the full current value without having to pay a nickel of capital gains tax on all the appreciation.

Even if you don't have financial resources to spare, you can thin out your closet and donate all those things you got last year and haven't worn, then take a deduction for their reasonable value. Believe me, I see lots of people every day who could use your outgrown winter coat or the ones your kids would no longer be caught dead wearing. Just consult the NH Charitable Foundation's website for how to document those contributions and ensure the write-offs.

Finally, how often do we feel like we have to come up with a little something for people who really don't need anything at all from us - maybe our in-laws or the party hosts who already have enough banana bread? Instead, why not make a contribution to an organization you know they value? They won't have to re-gift what you give them and they'll probably be impressed that you took the time to give the situation some real thought.

There are lots of other ideas, too - like a $2 weekly payroll deduction to the United Way - but if you're considering more upscale concepts like donor-advised funds, charitable gift annuities or remainder trusts, let me know. I can help with those, too. These ideas are just the low-hanging fruit of generosity. The key consideration is that no gift is too little to small, struggling organizations that depend on each and every dollar they receive. Just make sure you think about that before you have an epiphany on New Year's Day and have to wait another year for the deduction.

Express Your Trust Intentions

Thanksgiving, more than any other holiday, seems to bring us together not only for a gargantuan meal, but also for those awkward conversations about family relationships. You know, "Why don't you ever call except when you need money?", or "I'd feel a lot better about helping out if you'd make an effort to get a job, any job." Sometimes, though, we dodge those talks to keep the peace, and then fester about them for another year, hoping we eventually get our points across before time passes us by.

And that's my theme here: If you've got something to say, and if you're too timid - or diplomatic - to say it to your offspring's face(s), at least put it in writing for your representatives to rely on once you're gone. Here's an example: Your carefully-drafted trust says that distributions can be made for the "maintenance and support" of your progeny until they eventually get what's left at a more mature age - like when they might actually safeguard your benevolence instead of blowing it on concert tickets or home theater systems.

But what does "maintenance and support" really mean to you? Is it the hope that your kids will receive whatever they need or want to enjoy life's privileges, no matter what they're trying to do to make their own way? Or should your trustee be considering and evaluating your children's self-help efforts - and responding primarily when they're doing the best they can, even if their life's work isn't putting them in the top tax bracket? I suspect most of you are checking the latter box, but your trustee really needs to have that philosophy from you in writing if he, she or it is going to defend that concept to your beneficiaries and prevent a sense of unfettered entitlement on their part. We all know people we call "trust fund babies", and I doubt we use that phrase as a form of flattery. Maybe if their seniors hadn't left the coffers so wide open - but had expressed some constructive criteria for helping out - we'd not only be less resentful of those folks, but the babies themselves would also be healthier and, I submit, happier.

And you don't need a lot of expensive legal help to do your trustees and beneficiaries the favor. Your philosophy - which some refer to these days as an "ethical will" - can be in your own words, doesn't need to pass legal muster, and isn't in need of a notary to have its desired effect. You can rewrite and refine it many times over the course of the years - without ever having to officially amend a trust - and as long as it's left with the people in charge of your stuff once you're gone, they'll have something concrete to point to in interpreting your intent. Just include whatever's important to you that you want them to remember when you can't say it yourself - or don't want to say now and ruin everyone's festive dinner.

Help Most Effectively

While we certainly have plenty of people who are hurting for the basic necessities of life and health in our country, the extent of poverty and disease in Africa (our recent vacation destination) is orders of magnitude greater. That got me thinking about philanthropy in general, which I'm defining here as something more than our $100 to the local food pantry. Don't stop reading quite yet, though, even if that's your usual contribution level.

Still, I'm talking primarily to those of you who were able to underwrite your kids'/grandkids' school expenses (and have something left), or who may have sold a successful business or accumulated disposable assets from some other source that leaves you in a position to help out where help is needed. Clearly, the most direct way to make a difference is to do your research and find the non-profits that will make most efficient use of their funds for the purposes important to you. You can use Google as well as I can, butcharitywatch.org is one good place to start. OK, I'm circling in on the point now.

Instead of making a direct contribution, however, many people these days use so-called "donor advised funds" as the vehicles for getting their charitable deductions. They set up a DAF with someone like Fidelity or Schwab, get their year-end paperwork for tax return purposes, and promptly lose track of what's actually happening with the assets. The investment firm invests the resources, deducts a nice management fee each year, and may or may not actually make a distribution to a non-profit that's in dire need of those funds to provide its important services - because there's no legal obligation to do so in order for our generous philanthropists to get their full tax deductions. And the investment folks have an understandable disincentive to push the funds out to the service providers, because, let's face it, distributions reduce their fees.

So, finally, the moral is this: If you want one of these investment firms to produce healthy returns for your offspring's eventual benefit or your own retirement, great. But if you want to help eliminate poverty in the U.S. or around the world, or help come up with a cure for cancer, ALS or Ebola, then find the organization that has those goals in its sights and fire your ammunition right at the target. If the gift horse is already out of the barn and into a DAF, then just make sure your investment firm distributes your resources where they're needed as quickly as possible.

When you see the difference that even modest gifts could make to people who have absolutely nothing or to those poised to conquer a deadly adversary, it's hard to accept that there are billions languishing in DAF accounts that could help out immeasurably. Even if you're not in a position to be a philanthropist yourself, you can spread the word about where all the resources are bottled up. If enough people understand the situation, it might help get the law changed to ensure that all those funds actually do some good as soon as possible.

One footnote: I owe credit for opening my own eyes on this subject to my good friend Al Cantor, who's become a national spokesman on this topic.

A Difficult Conversation

Before moving on to a new message here, let me pass on a comment I received from a reader about the article on joint tenancies. He mentioned that a child, say, who's put on as a joint tenant of a parent's account - strictly for convenience purposes - would have no obligation to split the proceeds with his/her siblings once the parent was gone. In fact, I've seen that happen a number of times, and it's just another of those circumstances that can drive a wedge between siblings once the parent is no longer able to keep the peace and set the record straight. So chalk up another reason not to go that route for probate avoidance.

So, as long as we're on the subject of difficult moments between parent and child, let's segue to one of the most troublesome of all: the conversation about giving up the keys to the Buick. Too often, parents just don't or won't see the writing on that billboard - maybe there should be a guy in the road holding a big yellow "STOP" sign. The problem might be something ocular like glaucoma or macular degeneration, or something cranial like creeping dementia, and when it's combined with something attitudinal like pig-headedness, it can make for an ugly experience for everyone.

Here's the thing, though. Most children have no reason to get the keys away from their parents until there's good cause for them to take over some of the driving. Like, they hit the gas instead of the brake outside the supermarket and total the Buick; they get lost on the trip they've made dozens of times to the Wellness Center; or they can't find the keys at all until they show up in the refrigerator. Let's leave out the tragedy of a bad accident that kills someone, but we've all seen that happen several times in our own area - and is that really what we want our parents to risk before admitting they've driven far enough? That's sort of the nuclear option, but use it if all else fails.

Look, no one wants to recognize another milepost of his mortality, but there are lots of folks these days who never drive in the first place, and I doubt they'd say their lives are incomplete. And think about Stephen Hawking, for example. He had to give up driving a car long before most of us - and we should all lead such meaningless and unproductive lives. So why not make the process easier on everyone.

My 91 year-old mother did. She's no more perfect than the rest of us, but she volunteered the keys before my brother and I ever sweated over having that conversation. Now she just has the rest of us take over the driving whenever we visit, and she's lined up a cadre of other drivers for when we're not around. Apparently, she's still smart enough to stay a step ahead of her kids!

Joint Tenancies Redux

I've written already about the use of joint tenancies to help avoid probate. If one of the JTs dies, the other becomes the sole owner of the asset without the need for expensive and time-consuming probate magic to have the title appear in the name of the survivor. I've mentioned also, however, that if both joint owners depart at the same moment - unlikely, but we've seen it recently even in this community - then both owners' estates must run the probate gauntlet.

But let's say we're willing to risk the double catastrophe. Are there any other drawbacks to putting our children, for example, on as joint owners of our accounts or real estate, so they take over effortlessly once we're gone? Well, yes, actually, or I wouldn't be wasting your time here.

When we put another name on the titles to our assets, we see it as simply a convenient probate work-around. The trouble is, the law views it differently - that is, as a gift of a partial interest in the respective asset. So, if we put a child's name on as joint owner of a bank account or of the title to our home, the presumption is that they now own as much of it as we do. Legally, that also means their part interest is subject to all the vagaries of their [perhaps] tumultuous lives, even though ours may be pretty sedentary at this point. While we're patting ourselves on the back for our shrewdness, our children may be getting sued over a bad car loan, credit card balance or medical bill - perhaps even to the point of bankruptcy - or they may be splitting with their spouses. All those events put their share of our assets at risk for the benefit of people and creditors we had no plan to benefit.

The other risk - and I hesitate even to breathe a word of it because who would do such a thing? - is that joint owners of our accounts have access to those funds - and I mean all of the funds - for their own purposes. Oh, I'm not suggesting they're really out to rip us off like one of those phone scam artists; they may just need an advance on their rent or oil delivery and will repay it as soon as their next paycheck arrives. Only there are other bills due then, and somehow the account never gets replenished. It's a bad cycle and it tends to repeat itself, even if there's no malice involved.

So, what do we do instead? Some banks and brokerage firms will let us name beneficiaries on our accounts, so they go to our beneficiaries - as with life insurance and IRAs - again without probate, when we pass on. In the meantime, we remain the sole owner of our financial assets - and can get a good night's sleep. Another way, of course - and you should know this by now if you've been reading here for any time at all - is to set up a revocable trust, with yourself as the trustee, and title your assets there. That will still provide the probate avoidance magic, and at least as long as you're around, your family members will deal with their life challenges without tangling up your stuff in the process. If and when you really do need help from someone to handle those increasingly baffling financial affairs, you can add the offspring as co- or successor trustees - or maybe just designate them as signatories on the accounts - then make sure to ask for your own copies of all the bank and investment statements.

I'm sorry if I've impugned the integrity of anyone's young folks with my alarmist comments. It's just that it's a financial minefield out there for many of our offspring, with stressful decisions facing them every month. We want to help them whenever we can, but we want to do it on our own terms - and not to unwittingly expose our assets to risks we thought we had weathered years ago. You offspring should be listening, too: Don't let your elders' hard-earned resources be put in unwitting jeopardy for your obligations - ones that you can probably work through on your own - or there may not be a need to worry about probating anything later on.